Plaintiff Permitted to Amend Employment Discrimination/Sexual Harassment Complaint Against the NBA

In Hardwick v. Auriemma, 2015 NY Slip Op 31836(U) (Sup. Ct. NY Cty. Sept. 25, 2015), an employment discrimination case, the court granted plaintiff’s motion to amend her complaint, pursuant to CPLR 3025(b), to add former NBA Commissioner David Stern as a party defendant and to add a claim for constructive discharge. (Here is plaintiff’s amended complaint filed in light of this ruling.)

The facts, as summarized by the court:

At the commencement of this action, plaintiff was a director in the Security Department of defendant the National Basketball Association (“NBA”). Plaintiff alleges that after she spumed the unwanted sexual advances of defendant Geno Auriemma (“Auriemma”), former head coach of the USA Women’s National Team, defendants discriminated against her by, among other things, relieving her of her prior duties and work assignments. Plaintiff further alleges that the NBA maintains a discriminatory workplace where she has been continually denied promotions based on her gender and that the NBA, through certain individuals, engaged in gender discrimination by assigning her to perform duties that would afford her less opportunity for advancement than similarly situated male employees. Plaintiff resigned from her position with the NBA on February 17, 2014.

The court granted plaintiff’s motion to amend, finding that “defendants will not be prejudiced or surprised by the amendments and the amended complaint is not palpably insufficient or clearly devoid of merit.”

Constructive Discharge

As to plaintiff’s proposed amended claim for constructive discharge¬†under the New York State and City Human Rights Laws, the court explained:

To state a claim for constructive discharge, plaintiff must allege facts showing that a defendant deliberately created working conditions so intolerable, difficult or unpleasant that a reasonable person would have felt compelled to resign. Here, plaintiffs proposed second amended complaint alleges that defendants:¬†(1) issued a revised dress code directed at plaintiff; (2) isolated plaintiff from her workplace, kept her out of meetings and treated her differently than her counterparts; (3) denied plaintiff a second round interview for the position of Vice President, Security Operations and Strategy after she was told by the Vice President of Recruitment that she had the requisite experience and skill set for the position and would be recommenced for the next round of interviews; ( 4) reassigned all of her NBA teams to other managers in an attempt to disrupt her long-standing relationships with these teams and their players; (5) ignored her complaints that her work conditions had further deteriorated and that her direct supervisor, defendant James Cawley, was continuing to engage in action designed to retaliate against her; and (6) told her, in a very antagonistic way, “You are not being promoted, you will not receive an increase, and you will not receive a bonus!”

Judge Kern rejected defendants’ reliance on case law where the courts dismissed constructive discharge claims for insufficient evidence, finding that most of them arose in the context of summary judgment and that none of them presents an identical factual scenario to the case at bar.

Amendment to Add Stern Not Precluded on the Ground That They Pertained to “Settlement Discussions”

The court also rejected defendants’ contention that plaintiff’s proposed amended allegations against Stern should be rejected and excluded from the complaint because they were made as part of settlement discussions. While the proposed amended complaint asserts, for example, that Stern approached plaintiff and suggested that they “settle [their] differences”, it could not be said that those allegations “unquestionably pertain to settlement discussions.” The court reasoned that “[a] conversation between an employer and employee that uses the word ‘settle’ and mentions an ongoing lawsuit does not, as a matter of law, make that conversation a settlement discussion.” It also observed that “it is not for the court to determine on a motion to amend whether evidence is admissible or not” and that “the only inquiry is whether the proposed amendment is ‘palpably insufficient or patently devoid of merit.'”

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